Articles
Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

The Arc of a Career: A short story about practicing in two centuries

NOTE: This article if best viewed in print. View the Digital Edition

The Starting Pint overflowed with classmates too giddy to sit, as Burdette clambered onto the bar, cradling a glass and yelling “Shoot me to the moon!” above the din, as if Minnesota had won a national championship rather than recording the usual 95 percent pass rate on the 1981 bar exam. But the fortunes of a few could matter, and on a Friday night hopes were soaring to the office suites above the city. Failure was forgotten. Seeing someone who had flunked the bar seemed less likely than a celebrity appearance by Scott Turow1 or John Houseman.2 

Euphoria reigned, with prosperity at hand and justice to follow, as the “moral arc of the universe”3 fully aligned with personal success. You had read To Kill a Mockingbird in junior high, and watched Watergate on TV, and now youth alone ensured an “improvement of the law.”4 Women were 42 percent of your class,5 a black student was president of law review, and more new lawyers were in training than new doctors.6

Law’s possibilities were so endless that social good could even come by serving the “undivided interest” of an anti-social client.7 This might dim public acclaim for lawyers,8 but your generation of lawyers would overcome. “Salaries for top law graduates continue[d] to climb,”9 and justice itself would know no ceiling.

On Monday, mirrored elevators lifted you to the 14th floor of the Great Northwest Mutual Assurance Building—you and Wenell and Sage all recast in three-piece suits from clerks10 to courtroom aces. It was all “law and economics” to you;11 there was enough money at Highborough, Barker and Billings to pay a lawyer’s salary for fetching the Reporters in their uniform brown colors, lining their numbered spines in order on a cart, and wheeling them down to partners’ offices. Mail filled the inboxes, a reassuring stream of paper that drowned out warnings of “too much litigation.”12 The lobby post office delivered twice a day, and the Quill and Scroll stationers, Temple Bar, and Coif and Crew’s Barbershop catered to the building’s law firms. 

Up on the 14th floor, you floated on pure air and the communal coffee buzz. But by lunch Billings had summoned Wenell, draft brief in hand after a weekend in the office, and things got real. A race was on and Wenell had burst ahead as if he had a career coach holed up in a downtown hotel suite. While Sage had only her mother, still telling her to wear high heels, and you had Old Man Barker, who didn’t care what you wore so long as it covered up your ignorance.

The next day, Highborough called Sage in to edit Minnesota Land and Water Law, while Old Man Barker summoned you for his best client’s neighbor’s appearance on a shoplifting charge. You hardly slept all night, and by nine a.m. your woolen vest was damp with sweat. But Heidi was even more nervous, greeting you as if you were her only friend on earth, which gave you the warm glow of pro bono publico, even if she was a paying client.

You were a legend but only in the library. Wenell’s brief had persuaded Litigation to let him argue it himself. Meanwhile, Old Man Barker sent you to a conference room with plastic chairs, a stack of Bates-stamped documents,13 and a law clerk who lectured you on document review. The Old Man saw your despair. “We’ll get you something big before you know it, Buddy.”

The Old Man’s brief turned out to be big, needing to be trimmed of the Latinisms and subordinate clauses that, along with his scales-of-justice cufflinks, his bottom-drawer bourbon,14 his painstaking attention to the “appearance of impropriety,”15 and his inability to operate the copy machine, marked him as “old school.”16

Your reward was not Appeals, but the Old Man’s niece’s DWI. She had failed the balance test and been offered leniency a poor person would never get, so Eileen pleaded guilty. She sobbed in the courthouse parking lot, but whether from remorse or resentment was a confidence you could not share.17

Barker thought you were ready for Ex Lax, Inc. v. Texas Textiles, a trademark-dilution claim against client Texas Textile’s “X-Slacks” brand. It paled beside the floppy-disc unfair-competition case Wenell was second-chairing, Highborough’s Kodak v. Polaroid,18 its IBM,19 so buried in discovery the firm had leased some warehouse space. But you learned trial strategy mediating between Highborough’s formality and Barker’s fervor. They argued so much over who had lost the case that they gave you the appeal, which got you into your second year. 

You were back in the library—just as peers were getting into court20—keeping late nights with Dewey, a first-year idealist, full of good talk,21 and Sage, quietly revising Highborough’s Minnesota Corporations but speaking out on the law’s failure to serve the poor. Being underpaid and overworked, you felt that even without pro bono you were a net social asset. But, as Sage said, society was not directly benefitting from your work, and the firm did no pro bono except what Highborough picked up at church.

You lost Texas T, but soon had done so many cite-checks that you were promoted to Appeals. You were the Wenell of the stacks, with an intramural literary reputation, a critical eye for frivolous arguments,22 and soon a window office. You met Brigid, a downtown architect, who soon agreed to marriage, weighty baggage for a female lawyer23 but a boon for you. The senior partners enjoyed the “Bridge and Buddy” wedding so much they gave you a parking spot. Soon you were named Deputy Chief of Appeals.

Your duties grew; the Old Man retired; parenthood arrived; and there was no time for late nights in the library debating Dewey on the slow advance of justice.24 Or whether the firm would sign the ABA pro bono pledge.25 Or how many lawyers would participate.26 Or when they must refuse to represent a paying client pursuing evil ends. 

Fatherhood was a starring role but every day at work brought more deadlines, and parenting was not good cause for an extension. You craved sleep and were sorely tempted by the occupational plague of procrastination,27 but Old Man Barker’s growl still echoed every morning, and you attacked your oldest brief before peeking at the sports page.

You were named Chief of Appeals, with three associates beneath you. People looked up when you got on the elevator. No one raised their voice in your presence, and you reported directly to the managing partner. 

The toughest cases you took on yourself. When a five-part question was certified to the Supreme Court, you did the brief, although it took a month.

You took the toughest clients. In Precision Parts v. Thornbush, Inc., Barker’s client, “Chick” Thornbush, was sued for soliciting his buyer’s customers. Precision won a hefty verdict with the help of a brushless-motor trial exhibit that dazzled Dewey so much he would have left the law for engineering but you objected that the firm itself had gotten its drive from the creative tension between Highborough’s love of the law and Barker’s client courtship. And someday they would find a high-stakes case with big social benefits.28 Meanwhile, Wenell trivialized the problem of the unrepresented poor, citing a prisoner who prevailed on a claim that exposure to second-hand smoke was cruel and unusual punishment29 to dismiss a consumer claim as frivolous.

You argued Precision Parts at the Eighth Circuit in St. Louis, rattling a Big Law partner from Chicago, while Thornbush grinned in the gallery. The law and the facts were both against you, but the majority saw your points, and the concurrence even quoted from your brief. You had done good work for a difficult client,30 who paid you back by making you petition for certiorari to the Supreme Court despite the dismal chances. Dewey the social activist was dismayed.31 But the paper featured it, and it seemed to promise a future full of cert petitions, a trajectory of Big Cases leading to a path-breaking argument in the Highest Court in the Land. Meanwhile, you craved a case with moral high ground.32

But baser ambitions kept you up at night. Free agency had come to the law, with “lateral hires” in the news.33 Wenell was lured to Big Chicago Law, which made you think of leaving. Your reputation in Certified Questions was growing, even as the profession’s approval ratings fell.34 But Highborough kept you on with a seat on the Management Committee.

Soon performance reviews joined briefs in your briefcase. Law firms kept growing, public approval cratered.35 A well-known classmate was disbarred for dipping into client trust accounts.36 Wenell himself was suspended, and your old ethics professor, Roland Countryman, was quoted in the paper on why high achievers break the rules. 

Responsibility took its toll. You missed Old Man Barker’s urgent calls and Highborough’s feeble jokes, the presence of older people who could take the blame. Now it was just your generation. You ordered a new copier that could churn out 50,000 pages a month37 and felt the responsibility of supervising all that work.38 

It was easier to blame your living quarters than your life’s work, so you fled the urban gridlock for Prospect Heights. Lawson and Alexis excelled at Excelsior Academy, racing from coloring books to The Classics, while you plodded through performance reviews and annual budgets, increasingly overpaid and underworked, with a caseload that largely meant you weren’t “doing society’s work.”39

Certified Questions was a lofty meadow on the heights of abstraction above the grubby fields of law. At the yearly retreat in Colorado, eminent academic highbrows struggled to make it relevant. It was as close to appellate judging as you would ever get, closing with toasts to the year’s advances in CQ law40 in Cliff Top’s penthouse suite, while, according to some, public respect for lawyers “dropped precipitously.”41

The law you could conjure in your head kept shrinking. Public opinion of your profession slipped,42 but you could no longer see the law through layman’s eyes. You fretted over profits per partner, not the merits of the McDonald’s coffee-spill case,43 and found fascinating only the cases you were immersed in.44 You followed the fate of cases you had been forced to learn in school—Miranda,45 Mathews v. Eldridge,46 Katz v. United States47because stare decisis somehow staved off aging. But you had less time to “cultivate knowledge of the law,”48 and knew less about its lurid cases than the architects who came after you at parties with questions about O.J., McVeigh, and the Unabomber. And what it all meant for those of lesser means escaped you.49

Before long you were Managing Partner, the Gross Meister of retreat planning, with front-row parking at the Wing Tip Point Resort, but on the big issues of billable hours and partner draws you were a referee without a whistle. Attorneys debated vacation schedules and “business casual” dress as if they “implicate[d] public policy,”50 while the “moral arc of the universe” seemed inversely related to the rise in attorney incomes.51 

Change was needed, and you drove to the annual retreat planning to jolt the gathering by asking, “What good are we doing?”52 But you almost hit a deer and chose instead the tired joke about the dead lawyer lying on the road and how he differed from the dead skunk.53 But your proposal for in-house training on the new Professionalism Aspirations passed.54 Sage gave a talk on pro bono death-penalty representation, thus honoring Highborough, who had raised standards high and battled lawyer advertising.55 

Meanwhile Lawson was accepted into Middlecrest College, a modest eminence among the lakes and pines, but a mountaintop experience for a parent. The relentless rankings that plagued the college search had spread to law. Law firm growth was now a metric, the figures displayed in Minnesota Lawyer, where somehow Highborough had crept into The Top 50 Law Firms. 

You tried passing Appeals on to Sage, the only woman on the Management Committee. But she was deep into a death-penalty case, while teaching as an adjunct and mentoring women lawyers, still strong in numbers.56 You recruited Dewey, who also saw the layman’s view of law, for the Committee, and waited for the fireworks. 

The Great Northwest Mutual Assurance Building was sold to Digital Widgets, Inc. and renamed DigiTowers. The old claims adjustors loaded their paper files onto the freight elevator and said goodbye from the loading dock. The post office, where Frank dragged out his smoke breaks in the back by telling lawyer jokes to senior partners, was gone, along with the Quill & Scroll and even the newspaper rack. Bearded young programmers in jeans took over the lobby, stoked on espresso, energy drinks, and talk of e-commerce.57 They showed no interest in lawyers, and you never saw one doubled over with laughter. The charms of GNWMA were gone, but the rent kept rising.

You tried to see the law through younger eyes. Lawson the computer engineer and Alexis the marketing whiz sometimes showed up for Sunday dinner. But the law only reminded them of you, and the crime shows they might have watched featured forensic scientists, not lawyers. Hard-boiled Law and Order litigators had pushed aside the eager kids on Paper Chase.58

At work, the old gang who called you “Buddy” had retired. You were now “Bones,” suspected hoarder of legal-size pads and hardcover copies of Latin As a Second Language. One of them volunteered to help with your “computer issues.” Paper and pen were an eccentricity—“the prerogative of the older generation, [which] ha[d] gone out of fashion”59—that would be strictly rationed.60 And operating the new copier was not within your “skill set.”

Even as the cost of lawyers flattened the upward arc of justice, the firm’s overhead soared. You scouted cheaper space in the Genexus Tower, the MidLife Time Management Building, and the Gray Bar Restoration Building, passing the Gray Bar Grill to stop at the door of GopherJustice, a non-profit public-interest firm whose used desks and frayed couch begged for money. You picked up the business card of founder Roland Countryman, who had recruited other former University profs after the hopes for Civil Gideon seemed to die.61 It drew on a corps of retired men and women lawyers stacked in the floors above in one-room Limited Law Practices.62 The Management Committee chose Genexus. You talked the Highborough Foundation into donating new furniture for Gopher Justice and researched retirement.

You learned you could keep your benefits if you limited your practice.63 And doing pro bono work would not be “practic[ing] competitively”64 with the firm. Sage and Dewey applauded, and Brigid was flexible. You emailed the news and braced yourself for the balloons and cake, a party where, with Barker and the others gone, the stories were all about “Bones,” not “Buddy.”

On Monday, Nashad, your first GopherJustice client, cried in the conference room as you reviewed the complaint while her daughters played checkers. She was a CPA who did even nobler work65 as a PCA, changing bedsheets at a nursing home.

Countryman convened the staff on Friday at the “Graybeard’s Grub,” which offered not even a glance at the Parting Glass across the street. It was tea and decaf, pickled delicacies, and good talk that calmed the spirit and unclogged the mind and revealed the crux of the client’s case, and you rushed back to your desk to write it down, startling the other graybeards. 

The dismissal order came through, and Nashad was at the Grub in a maroon hijab to toast it. The graybeards saw in the order another sign that, in matters of justice, they were “old and in the way” of the right people.66 Nashad cried as Roland passed on to her the offer of an accounting job. Her daughters called you “Grandpa Judge.”

But more Nashads would come in hopes of similar results, and the door had to be kept open. As Countryman would say, lawyers provide access to the law, not justice itself,67 and you had to stay late to write a grant proposal to the Grand View Foundation. You couldn’t give the proposal the urgency of youth. But at least you could write it with good cheer. You had escaped the dreary error of mistaking the weariness of decades spent at a single desk for the inability to rise to a new challenge.

 

STAN KEILLOR delivered mail in college to the old downtown Minneapolis firms. He enjoyed a career as a staff attorney at the Minnesota Court of Appeals before returning to the skyways as a staff attorney at Access Justice and, currently, as a solo practitioner and special assistant state public defender. 

 

1 Author of One L (1978), an account of one Harvard Law School class.

2 Actor who played Harvard Law Professor Kingsfield on the TV drama Paper Chase (1978-1986).

3 “The moral arc of the universe is long, but it bends toward justice,” Rev. Martin Luther King, Jr., quoted in Howard Lesnick, “The Reality of Moral Imperatives in Liberal Religion,” 28 J. of Law & Relig. 297, 302 (2012-13); cf. Oliver Wendell Holmes, Jr., “The Path of the Law” at 3 The Collected Works of Justice Holmes 392 (Sheldon M. Novick, ed.) (U. of Chi. Press 1995) (“[The law’s] history is the history of the moral development of the [human] race.”).

4 “As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality
of services rendered by the legal profession.” Minn. R. Prof. Cond., Preamble] [6].

5 Nationally, women made up 32 percent of U.S. law school enrollment in 1979-80. ABA, “First Year and Total JD Enrollment by Gender for 1947-2008” (2009). Available online at www.abanet.org/legaled/statistics/charts/stats%20-%206.pdf .

6 Lloyd N. Cutler, “Conflicts of Interest,” 30 Emory L. J. 1015, 1015 (1981) (noting that 15,000 medical degrees were granted in 1980, compared to 35,000 law degrees).

7 See Polk County v. Dodson, 454 U.S. 312, 102 S. Ct. 445 (1981) (“[The legal system] posits that a defense lawyer best serves the public, not by acting on behalf of the State or in concert with it, but rather by advancing ‘the undivided interest of his client.’”).

8 A 1983 Gallup Poll showed that only 25 percent of the public had a favorable (4 percent very high, 21 percent high) opinion of the honesty and ethics of lawyers. See gallup.com/poll/1654/Honesty-Ethics-Professions.aspx.

9 In 1984, a majority of law students identified with “progressive” candidates and causes, with 51 percent voting for the Democratic presidential candidate, Walter Mondale, and 39 percent voting for Republican President Ronald Reagan. Lauren Rubenstein Reskin, “A Portrait of America’s Law Students,” 71 ABA Journal 43, 43 (May 1985). Two-thirds of law students favored a woman’s unconditional right to choose an abortion. Id.

10 The “line drawn between the work of a law clerk and an attorney [was] a fine one.” In re Jorissen, 391 N.W.2d 822, 825 (Minn. 1986).

11 “Law and economics” could also have reflected law’s pricing itself out of the reach of millions. See Elena Romerdahl, “The Shame of the Legal Profession: Why 80% of Those in Need of Civil Legal Assistance Do Not Receive It,” 22 Geo. J. Legal Ethics 1115, 1118 (2009) (“Only twenty per cent of those requiring civil legal assistance actually receive it.”).

12 See Marc Galanter, “Reading the Landscape of Disputes: What We Know and Don’t Know (And Think We Know) About Our Allegedly Contentious and Litigious Society,” 31 UCLA Law Rev. 4, 4 (1983) (quoting Chief Justice Warren Burger’s discussion of the “litigation explosion” in “Isn’t There a Better Way?,” 68 ABA J. 274, 275 (1982)).

13 “Bates stamp” refers to “a self-advancing stamp machine used for affixing an identifying mark, usually a number, to a document or to the individual pages of a document.” Buscher v. Montag Develop., Inc., 770 N.W.2d 199, 203 n.2 (Minn. App. 2009).

14 In the old days bourbon was even supposed to sharpen a lawyer’s skills. See Clarence J. Ruddy, “Lawyers and the Flowing Bowl,” 5 Notre Dame Lawyer 3, 6 (Oct. 1929) (“Lawyers whose brains were sharpened by a thimble of Bourbon used it to much the same purpose as some men today take a cold shower—though with much greater effect.”). But in 1990, 18 percent of lawyers were considered “problem drinkers.” G. Andrew Benjamin, Elaine J. Darling, Bruce Sales, “The Prevalence of Depression, Alcohol Abuse and Cocaine Abuse Among Lawyers,” Int’l J. of Law and Psych. 233, 241 (1990). But 25 percent of lawyers practicing more than 20 years were in this category. Id. By 1996, when lawyer assistance programs had taken root, 90 percent of their work in Minnesota was with alcohol abuse. 1996 Survey of Lawyer Assistance Programs (CoLAP, ABA 1997).

15 Minn. R. Prof. Aspirations I.E. (“We will always endeavor to conduct ourselves in such a manner as to avoid even the appearance of impropriety.”)

16 “[Mr. Tulkinghorn the solicitor] is of what is called the old school—a phrase generally meaning any school that seems never to have been young ….” Charles Dickens, Bleak House 19 (Signet 2011).

17 “A lawyer shall not knowingly reveal information relating to the representation of a client.” Minn. R. Prof. Cond. 1.6(a).

18 Polaroid v. Eastman Kodak Co., 519 F. Supp. 381, 388 (D. Mass. 1981) (granting Kodak motion for summary judgment on validity of Polaroid patent). 

19 In re International Business Machines, 618 F.2d 923, 925 (2d Cir. 1980) (government’s case in antitrust action against IBM “lasted for almost three years, ending on April 26, 1978. IBM’s defense began on that date and continues as of this writing.”); cf. International Business Machines v. Edelstein, 526 F.2d 37, 40 (2d Cir. 1975) (“This is not an ordinary case and this will not be an ordinary trial.”).

20 See William Domnarski, Swimming in Deep Water: Lawyers, Judges, and Our Troubled Legal Profession 138 (ABA Publishing 2014) (“A Thomson West survey, for example, has indicated that in large firms a new associate can expect to spend 80 percent of his time researching, drafting, and writing documents. Between years 2-4, the figure drops to 70 percent, and for associates with more than five years, the figure drops to 40 percent.”).

21 See Terminiello v. Chicago, 337 U.S. 1, 32, 69 S. Ct. 894 (1949)(Robert Jackson, J., dissenting) (“[T]he law is more tolerant of discussion than are most individuals or communities. Law is so indifferent to subjects of talk that I think of none that it should close to discussion.”)

22 “Although vigorously advocated, appellant’s reading of the cases cannot be upheld.” Mears Park Holding Corp. v. Morse/Diesel, Inc., 426 N.W.2d 214, 219 (Minn. App. 1988) (noting that “much research and investigation can go into refuting even the most frivolous claims”).

23 “[M]otherhood, actual or potential, exacts significant career costs for women lawyers.” Rebecca Korzec, “Working on the ‘Mommy-Track’: Motherhood and  Women Lawyers,” 8 Hastings Women’s L. J. 117, 117 (1997).

24 “Justice is not taken by storm. She is to be wooed by slow advances.” Benjamin N. Cardozo, The Growth of the Law 133 (1924); cf. Gerald Rosenberg, The Hollow Hope: Can Courts Bring About Social Change 35 (“court decisions are neither necessary nor sufficient for producing significant social reform”) (2d ed. 2008).

25 The ABA in 1993 challenged large law firms to devote 3-5 percent of their total billable hours to pro bono work. See Courtney Ward, “ABA Pro Bono Challenge in Hennepin County,” 64 Henn. Lawyer 10 (July-Aug. 1995). Dorsey & Whitney, Fredrikson & Byron, and Popham Haik were charter signatories, and six other large Twin Cities law firms also committed. Id.

26 In 1993, only 15 percent of attorneys nationwide participated in a formal pro bono program. Kim Schimenti, “Pro Choice for Lawyers in a Revised Pro Bono System,” 23 Seton Hall L. Rev. 641, 674 n. 153 (1993).

27 In re Disciplinary Action Against Skonnord, 441 N.W.2d 451, 451 (Minn. 1989) (ordering suspension, in part for attorney’s “procrastination in the handling of client matters”); Jacob A. Stein, “Occupational ‘Diseases’ Abound for Attorneys,” National Law Journal, 8/18/1986 (“Procrastination often reaches the point for some lawyers where it can be classified as a serious illness.”). 

28 See Richard A. Posner, Economic Analysis of Law 530-31 (6th ed. 2003) (discussing social benefits of litigation beyond that of dispute resolution); “Privatizing Public Litigation,” 104 Geo. L. J. 515, 525 (2016) (“Litigation produces various public goods; among other things, it deters wrongful behavior and contributes to an evolving body of precedent.”)

29 Helling v. McKinney,
509 U.S. 25, 113 S. Ct. 2475 (1993).

30 See In re Getty, 401 N.W.2d 668, 671 (Minn. 1987) (declining to suspend “disrespectful” lawyer for fear of discouraging lawyers from “represent[ing] their clients vigorously”).

31 “Rights activists” believe in “a direct linking of litigation, rights, and remedies with social change.” Stuart Scheingold, The Politics of Rights 5 (Univ. of Mich. Press 2004).

32 See Duffy Graham, The Consciousness of the Litigator 84 (U. of Mich. Press 2005) (“One litigator says, ‘I have to be able to find some moral ground to plant my flag in for me to be comfortable with the representation.’”).

33 See e.g. Mungin v. Katten, Muchin and Zavis, 116 F.3d 1549, 1554 (D.C. Cir. 1997) (“[Plaintiff’s] mistake was comparing himself to homegrown associates rather than to lateral entries like himself.”)

34 The public approval rating for attorneys fell to 14 percent in 1998. Robert A. Clifford, “Now More Than Ever,” 28 Litigation 1, 74 (Spring 2002).

35 The 1999 Gallup Poll found only 13 percent of the public had a favorable (1 percent very high, 12 percent high) opinion of the honesty and ethics of lawyers. See gallup.com/poll/1654/Honesty-Ethics-Professions.aspx. But
“[c]orporate law firms have exploded in size in the last two decades.” Randall S. Thomas, Stewart J. Schwab & Robert G. Hansen, “Megafirms,” 80 N.Car. L. Rev. 115, 116 (2001).

36 Cf. In re Sampson, 408 N.W.2d 574, 576-77 (Minn. 1987) (ordering disbarment of attorney found to have misappropriated approximately $450,000 in client funds). 

37 See Business Credit Leasing, Inc. v. Lobman, Carnahan & Batt, 635 So.2d 1196, 1196 (La. App. 1994).

38 See Minn. R. Prof. Cond. 5.1 (stating supervisory responsibility of partners and supervising lawyers).

39 Cf. Albert Choi and Chris W. Sanchirico, “Should Plaintiffs Win What Defendants Lose? Litigation Stakes, Litigation Effort, and the Benefits of Decoupling,” 33 J. Legal Stud. 323, 324 (2004) (“[Products liability] plaintiffs may well be doing society’s work in bringing defendants to task for dangerous product designs . . .”).

40 “As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education.” Minn. R. Prof. Cond. Preamble[6].

41 Russell G. Pearce, “Teaching Ethics Seriously: Legal Ethics as the Most Important Subject in Law School,” 29 Loy. U. Chi. L. J. 719, 719 (1998).

42 The percentage of the public that said the law was a profession of “very great prestige” fell from 36% in 1977 to 19% in 1997. Chris Klein, “Poll: Lawyers Not Liked,” Nat’l L. J. A6 (8/25/1997).

43 See Marc Galanter, “An Oil Strike in Hell: Contemporary Legends about the Civil Justice System,” 40 Ariz. L. Rev. 717, 731-33 (1998) (describing mid-1990s controversy over $2.9 million punitive damages award for very hot coffee causing third-degree burns to 81-year-old woman; the court reduced the award to $480,000). 

44 See Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 130 S. Ct. 1662, 1677 (2010) (Kennedy, J., concurring) (“When immersed in a case, lawyers find within it a fascination, an intricacy, an importance that transcends what the detached observer sees.”).

45 Dickerson v. United States, 530 U.S. 428, 444, 120 S. Ct. 2326, 2336 (2000) (declining to overrule Miranda and invalidating Congressional enactment overruling Miranda).

46 424 U.S. 319, 335, 96 S. Ct. 893, 903 (1976) (holding that a three-part test applies in determining what procedures due process requires).

47 389 U.S. 347, 361, 88 S. Ct. 507, 516 (1967) (Harlan, J., concurring) (formulating view – later adopted – that the Fourth Amendment prohibits intrusion on individual’s “reasonable expectation of privacy”).

48 See n. 30 supra.

49 See Russell Engler, “Toward a Context-Based Civil Right to Counsel Through ‘Access to Justice’ Initiatives,” 40 Clearinghouse Rev. 196, 197 (2006) (citing reports showing that “70 percent to 90 percent of the legal needs of the poor go unaddressed”).

50 See Donahue v. Schwegman, et al., 586 N.W.2d 811, 814 (Minn. App. 1998) (noting that law firm internal policy on payroll deductions “fails to implicate public policy” so as to fall under Whistleblower Act).

51 “There is far too much law for those who can afford it and far too little for those who cannot.” Derek C. Bok, “A Flawed System,” Harvard Magazine 38 (May-June, 1983).

52 “In the quiet hours when we are alone with ourselves and there is nobody to tell us what fine fellows we are, we come sometimes upon a weak moment in which we wonder, not how much money we are earning, nor how famous we are becoming, but what good we are doing.”
A. A. Milne, “Our Learned Friends,” in Not That It Matters (1920).

53 There were skid marks in front of the skunk. Nevertheless, “the practice of [the law], in spite of popular jests, tends to make good citizens…” O.W. Holmes, “The Path of the Law,” in 3 The Collected Works of Justice Holmes 392 (Sheldon M. Novick, ed.) (U. of Chi. Press 1995).

54 Minnesota’s Professionalism Aspirations were promulgated in 2001. They were intended to “encourage[] lawyers and judges to interact on a level above and beyond the bare minimum.” Julius W. Gernes, “Professional Aspirations: Encouraging Professionalism,” Bench and Bar 32 (April 2001).

55 Bates v. State Bar, 433 U.S. 350, 382, 97 S. Ct. 2691, 2708 (1977) (holding that lawyer advertising enjoys First Amendment protection).

56 By 2008-09, the percentage of women in the nation’s law school classes had climbed to 47.3 percent. ABA, “First Year and Total JD Enrollment by Gender for 1947-2008” (2009). Available online at www.abanet.org/legaled/statistics/charts/stats%20-%206.pdf.

57 Coincidentally, the Board required lawyers to tell their client if they were using an insecure means of communication. Minn. Prof. Resp. Bd. Op. 19 (1999).

58 See Robert A. Clifford, “The Impact of Popular Culture on the Perception of Lawyers,” 28 Litigation 1 (2001).

59 Louis Auchincloss, “The Legends of Henry Everett,” 1.

60 By 2005, 95 percent of discoverable information was generated and stored electronically. Christopher D. Wall, “Ethics in the Era of Electronic Evidence,” Oct. 2005 TRIAL 56.

61 See Turner v. Rogers, 564 U.S. 431, 131 S. Ct. 2507 (2011).

62 “Imagine that among the hundreds of thousands of experienced lawyers in their fifties and sixties, there is some fraction who would, if a path were readily available, choose to proceed to a second career as lawyers for the poor or for the public interest—let us call this public service lawyering…. We know that when they enter law school, many law students think this is what they want to do.” Marc Galanter, “’Old and in the Way’; The Coming Demographic Transformation of the Legal Profession and its Implications for the Provision of Legal Services,” 1999 Wis. L. Rev. 1081-1104 (1999).

63 See Robert W. Hillman, “Ties That Bind and Restraint on Lawyer Competition: Restrictive Covenants as Conditions to the Payments of Retirement Benefits,” 39 Ind. L. Rev. 1 (2005).

64 Cohen v. Lord, Day & Lord, 550 N.E.2d 410, 75 N.Y.2d 95, 98 (N.Y. 1989).

65 “It seems to me, then, that a profession is a noble or an ignoble one, according as it offers or denies to him who practices it the opportunity of working for some other end than his own advancement.” A.A. Milne, “Our Learned Friends,” in Not That It Matters (1920).

66 Marc Galanter, “Old and in the Way,” 1999 Wis. L. Rev. 1081 (1999); see Goldfarb v. Virginia State Bar, 421 U.S. 773, 792, 95 S. Ct.2004 (1975) (noting “lawyers are essential to the primary governmental function of administering justice.”).

67 See generally Katherine R. Kruse, “Lawyers, Justice, and the Challenge of Moral Pluralism,” 90 Minn. L. Rev. 389,390-91 (2005).

Leave a Reply

Articles by Issue

Articles by Subject